IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-20780

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

2004 FERRARI 360 MODENO

Defendant

EVENS CLAUDE, JOSETTE CLAUDE,

Claimants-Appellants

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 4:10-CV-4474

Before REAVLEY, JONES, and PRADO, Circuit Judges.

PER CURIAM:*

Evens Claude and his mother Josette Claude appeal the district court’s

civil forfeiture order of a 2004 Ferrari 360 Modeno that was purchased by Evens. 

Evens was convicted of conspiracy and uttering counterfeit obligations and

United States Court of Appeals

Fifth Circuit

F I L E D

November 7, 2013

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 12-20780

securities, in violation of 18 U.S.C. §§ 371 and 472. The district court found after

a hearing that the Ferrari was used to transport the counterfeit money and was

therefore subject to forfeiture pursuant to 49 U.S.C. § 80303. We affirm for the

following reasons:

1. The Government established a “substantial connection between” the

vehicle and Evens Claude’s offense with circumstantial evidence that

Evens transported the counterfeit money in the vehicle. See 18 U.S.C.

§ 983(c)(3), 49 U.S.C. § 80302(b). The record showed that Evens Claude

was known to pass the same type of counterfeit bills in Philadelphia and

that he traveled from Philadelphia to Houston. He then purchased the

Ferrari and drove it, along with Steven Montrose, to the Galleria. Evens

and Montrose were both found at the Galleria in possession of counterfeit

bills. Evens had ninety-eight counterfeit $100 bills on his person, and

Montrose had nine other counterfeit bills on him. A Secret Service agent

testified that the video surveillance at the Galleria did not show Evens

obtaining the counterfeit money there. It was not error for the district

court to find, based on a preponderance of the evidence, that Evens

transported the counterfeit money in the Ferrari. See 18 U.S.C. § 983(c)(1)

(“[T]he burden of proof is on the Government to establish, by a

preponderance of the evidence, that the property is subject to forfeiture.”).

2. There is no merit to the argument that the Government lacked

probable cause to seize the vehicle or that the complaint was not prepared

by and based on personal knowledge of the case agent. The record shows

that both Evens and Montrose told Secret Service agents that the two men

drove to the Galleria in the Ferrari. The case agent signed a sworn

statement averring to the facts. See United States v. Melrose East

Subdivision, 357 F.3d 493, 505–07 (5th Cir. 2004) (examining probable

cause based on the totality of circumstances and a common sense view).

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3. The district court did not err by holding that Josette Claude lacked

standing to challenge the forfeiture of the vehicle, and that there was no 

bailment or joint venture under controlling Pennsylvania law. Evens

purchased the vehicle solely in his own name with a cashier’s check

showing only his name as remitter. Evens was the only person listed as

the buyer on the invoice, and the seller indicated by affidavit that Evens

never mentioned his mother while purchasing the vehicle. Nothing in the

record suggests that at the time of sale Evens was purchasing the vehicle

on behalf of his mother. Moreover, nothing supports a claim that Josette

ever possessed the vehicle, delivered it to Evens, or could exercise a right

of mutual control over it. See, e.g., Smallich v. Westfall, 269 A.2d 476, 480

(Pa. 1970) (a bailment requires possession and delivery of the personalty

that is the subject of the bailment agreement); Tax Review Bd. v. Lou

Green, Inc., 187 A.2d 572, 574 (Pa. 1963) (joint venture requires a right of

mutual control). Although Josette allegedly provided money to Evens,

which he used to purchase the Ferrari, at most this makes Josette an

unsecured creditor and is insufficient to afford her standing. See 18

U.S.C. § 983(d)(6); United States v. $47,875.00 in U.S. Currency, 746 F.2d

291, 293–94 (5th Cir. 1984).

4. The forfeiture was not grossly disproportional to the offense and did not

violate the Excessive Fines Clause. Unlike United States v. Bajakajian,

524 U.S. 321, 118 S. Ct. 2028 (1998), the sole authority upon which the

Claudes rely, the value of the Ferrari, for which Evens paid $61,000, did

not exceed the maximum statutory fine for Evens’ offenses ($250,000 for

each count). Bajakajian is therefore insufficient by itself as support for

the claim that the forfeiture here was disproportional. See United States

v. $78,882.00 in U.S. Currency, 464 F. App’x 382, 384 (5th Cir. 2012).

AFFIRMED.

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